The DOJ and white-collar crime: new considerations

What exactly is the collective attitude held by principal government decision makers and law enforcers concerning the identification and prosecution of white-collar crime? What is currently of interest to investigators, and what is the scope of state and federal task forces as they target alleged wrongdoing?

Those questions comprise the core thrust in a recently issued report authored by the publication Financier Worldwide. Its writers conclude that “the DOJ’s efforts to target white-collar crime are widening,” simultaneous with the technology it employs in investigations “becoming more sophisticated.”

The report stresses that recent regulatory announcements and policies might well be casting mixed signals to American businesses and their owners/managers concerning scrutiny of their activities. Rather than instilling clarity, signals being sent to company heads might instead be eliciting confusion.

Here’s why. Late last year, the DOJ disclosed a new policy concerning companies’ voluntary reporting of violations committed under the U.S. Foreign Corrupt Practices Act. The inhering “presumption” of the policy changes is reportedly that regulators “will not prosecute companies that voluntarily disclose an FCPA violation.”

In tandem with that change, though, came language conferring considerable discretion to override the presumption in certain cases involving “aggravating circumstances.”

It has been persistently unclear where the balance is between DOJ leniency for companies confessing fraud (and making restitution) and a discretionary crackdown being employed in select instances.